January 24, 2014

ReadingLegalese—defined as the “formal and technical language of legal documents that is often hard to understand”—has no defenders, even in the legal profession.  Law students and lawyers get frequent reminders that they should learn to write legal documents without it.  Courts have dismissed cases when attorneys have filed overly verbose documents, and a federal court in Florida went so far as to order a party to redraft a motion, and provided suggestions for making it more concise.

One of the distinguishing features of legalese is repetition.  Too many lawyers fall into the habit of unnecessary repetition of words by using synonyms grouped together.  Some examples of this practice are:

  • Cease and desist
  • Each and every
  • Free and clear
  • Null and void
  • Remise, release, and forever discharge
  • Sell, convey, alienate, hypothecate, or transfer
  • Will and testament

There are many phrases that could be used to add to, augment, or otherwise expand this list.  Most of these phrases could be replaced by one word.  Why, then, do lawyers continue to use so many words?

KeywordsOne reason is that some phrases, although they look like redundancies, do contain words that have different meanings.  The phrase is used to make sure all of those different meanings are covered.  For example, if a document referred to a transaction depending on the “sale” of property, is that condition met if the property is given away?  In that situation, a list of words denoting a change in ownership might be used (even though the phrase “transfer to the ownership of another” would seem to meet most situations).

The more likely reason is tradition; or, as it may more cynically be called, “We’ve always done it that way.”  In law school, students tend to fall in to the habit of writing the way they think legal writing is supposed to sound:  ponderous, like the antique cases they study.  This habit carries over into their professional practice, and gets perpetuated over the generations.  The use of repeated words to convey the same idea sounds impressive, even if it is essentially meaningless.

How did the habit start in the first place?  There are a number of different theories.  Some have said that the practice originated from the days when legal scriveners were paid by the word.  This hypothesis is stated without citation to any historical evidence, so it may just be legend.  Another theory is that the practice dates back to the Norman Conquest of England in 1066.  Court documents were written in French, but English words were inserted next to French ones, in order to make legal documents readable by the public.  This theory was discussed by Judge Painter of the Ohio Court of Appeals in Kohlbrand v. Ranieri, 823 N.E.2d 76 (Ohio App. 2005).  The problem with this theory is that French was never an official language of England, and legal documents were written in a combination of English and Latin.

One reason for the start of the practice is that some of the “duplicate” words had distinct meanings.  Many lawyers have prepared at least one “Last Will and Testament” for clients, but they and their clients probably just referred to drafting a “will.”  Historically, a will was the document that passed real property, while the testament disposed of personalty.  Now, of course, there is no need for two documents, but the usage “will and testament” persists.

There is no denying that a “last will and testament” sounds more imposing than a mere “will.”  This may be the most important reason the repetition habit persists.  Lawyers try to make clients appreciate how serious legal work is.  While lending an air of gravity to a situation is not always a bad thing, however, remember that it can be taken too far.  Excessive repetition can easily cross the line from dignity to confusion, if it is done to excess.